5.  The applicant was born in 1948 and lives in Warsaw.
6.  In 1999 the applicant, who is a journalist, published a book entitled “Gazeta Wyborcza. Beginnings and Beyond” (Gazeta Wyborcza. Początki i okolice). The book relates, in an unfavourable light, the story of the founding of Gazeta Wyborcza, one of the best known Polish daily newspapers with a nationwide distribution. The newspaper was founded in 1989 in the wake of the so-called Round Table talks between the communist government and the heads of the then democratic opposition which ultimately led to the first semi‑free elections in Poland since 1945 and to the ultimate dismantling of the communist regime by the end of 1989.
7.  The second edition of the applicant’s book was published in 2003. No reviews of the book were published in the press.
8.  Subsequently, the applicant requested seven daily and weekly newspapers to publish an identical paid advertisement for the book. The text of the proposed advertisement reads as follows:
“It does not make for pleasant reading for [the editor-in-chief] of Gazeta Wyborcza, friends. The truth about Gazeta Wyborcza. Previously unseen documents and new witnesses. Stanisław Remuszko, a former journalist [at the newspaper], today working freelance, has written the first ever book in Poland, Europe and the world about Gazeta Wyborcza and its background. Do you have the faintest idea where the wealth of Gazeta Wyborcza comes from? Information available at www.remuszko.pl.”
9.  All the newspapers (Nasz Dziennik, Wprost, Metropol, Newsweek, Polityka and Rzeczpospolita) refused to publish the advertisement. Gazeta Polska was the first to agree to publish it and they signed a contract with the applicant. However, shortly afterwards the editor changed his mind, refused publication and reimbursed the money paid by the applicant.
10.  On 12 June 2003 the applicant lodged seven identical claims with the Warsaw Regional Court against the newspapers. He requested that the court order the defendant newspapers to publish the advertisements. The applicant referred to section 36 of the Press Act 1984 (see paragraph 34 below), arguing that nothing in the advertisement as proposed could reasonably be construed as being in breach of the law or third parties’ personal rights, or contrary to the editorial policy of the defendants, unless they considered that their editorial policy included a duty to protect the interests of Gazeta Wyborcza, its editor-in-chief and publisher. The applicant referred to Article 54 of the Constitution and to section 1 of the Press Act.
11.  The Warsaw Regional Court, by judgments dated 23 January 2004, 11 May 2005, 26 May 2005, 28 January 2004 and 28 March 2006 dismissed his actions against Nasz Dziennik, Wprost, Metropol, Newsweek and Polityka respectively.
12.  The applicant appealed.
13.  By judgments of 14 December 2005 and 23 June 2006 the Warsaw Court of Appeal allowed his appeals and ordered the defendant newspapers Wprost and Metropol to publish the advertisement concerned. No appeal was lodged against those judgments.
14.  During the appellate proceedings against Nasz Dziennik the Warsaw Court of Appeal decided on 15 October 2004 to make use of Article 391 § 1 of the Code of Civil Procedure and put a legal question to the Supreme Court concerning the interpretation of Article 36 of the Press Act. The Supreme Court refused to reply to this question by way of a decision of 14 October 2004 (CZP 67/05) (see “Relevant domestic law and practice” below).
15.  On 7 March 2005 the Warsaw Court of Appeal rejected the applicant’s appeal against Newsweek on formal grounds (failure to pay the court fee).
16.  By a judgment of 25 April 2006 the Warsaw Court of Appeal dismissed the applicant’s appeal against Polityka.
17.  By a judgment of 13 July 2004 the Warsaw Regional Court allowed the claim against Gazeta Polska. The editors appealed. The parties settled the case before the Court of Appeal. The applicant submits that ultimately the advertisement was not published.
18.  The present case concerns the proceedings against Rzeczpospolita and its editor‑in‑chief.
19.  By a judgment of 30 March 2004 the Warsaw Regional Court dismissed the applicant’s claim. It referred to section 36 of the Press Act, noting that the only requirements that paid advertisements to be published in the press had to comply with were the laws and principles of social co‑existence (zasady współżycia społecznego). The editors of Rzeczpospolita had been aware of the content of the book. Publishing the advertisement could have been regarded as endorsing that content, which, in turn, could have been seen as breaching the personal rights of third parties. This could have given rise to civil liability on their part. Not only were the editors allowed to refuse publication of an advertisement in breach of third parties’ rights; they were even obliged to do so.
20.  The applicant appealed, referring to his right to freedom of expression. He also argued that the first-instance court had failed to provide any explanation as to why and how the advertisement breached third parties’ rights.
21.  The Warsaw Court of Appeal, by a judgment of 4 November 2004, allowed his appeal and remitted the case for re‑examination. The court first held that publication of advertisements was not covered by freedom of expression.
22.  It further accepted the applicant’s argument about the lower court’s failure to give adequate reasons for its judgment. That court had held that the text of the advertisement was in breach of the law and third parties’ personal rights without adducing any arguments or reasons for that view. The court further observed that the lower court had made its assessment with reference to the content of the book concerned. This was not correct as under section 36 of the Press Act lawfulness and/or respect for third parties’ personal rights had to be examined with reference to the content of the advertisement only, and not of the advertised service or the merchandise. The content of the book was irrelevant in the case at hand.
23.  By a judgment of 30 January 2007 the Warsaw Regional Court dismissed the applicant’s claim. The court was of the view that the advertisement was incompatible with the newspaper’s editorial profile. It further reiterated that the publication of the advertisement could have been understood as an endorsement of the applicant’s views expressed in the book. This circumstance alone was sufficient to justify the refusal to publish the advertisement. Moreover, Rzeczpospolita and Gazeta Wyborcza were competitors in the press market. The publication of the advertisement could have given rise to a suspicion that the editors of the former were trying to denigrate the latter in the eyes of the public. Further, the editors were not obliged by law to endorse the dissemination of views and statements which they did not accept.
24.  The court concluded that the advertisement did not meet the requirements laid down by section 36 of the Press Act.
25.  The court further stated, referring to the views expressed by the Supreme Court in its judgments of 18 January 2007 given in other cases brought by the applicant and concerning refusals to publish the same advertisement (see paragraph 30 below), that the principle of commercial and contractual freedom dictated that a publisher was not under a legal obligation to publish all advertisements submitted to it because it did not have a monopoly on the market.
26.  The applicant appealed, reiterating his earlier arguments. He expressly relied on Article 10 of the Convention.
27.  On 7 February 2008 the Warsaw Court of Appeal dismissed his appeal, essentially endorsing the view expressed by the Regional Court.
28.  The applicant’s lawyer submitted a cassation appeal against that judgment to the Supreme Court, relying on the right to freedom of expression guaranteed by the Constitution and by Article 10 of the Convention.
29.  By a judgment of 26 March 2009, served on the applicant on 24 June 2009, the Supreme Court dismissed the cassation appeal.
30.  The court referred to its judgments given in other cases initiated by the applicant: CZP 67/05 (the Nasz Dziennik case – in which it refused to answer a legal question, see paragraph 35 below; I CSK 351/06 and 376/06 (the Polityka case). It observed that the press market was governed by business and commercial freedom. It resulted therefrom that publishers of newspapers could not be held to be obliged to publish all advertisements simply at the request of clients. The court referred to the Court’s judgment in the case of Appleby and Others v. the United Kingdom, no. 44306/98, ECHR 2003‑VII. It shared the Court’s view that the principles governing the exercise of the freedom of expression were also applicable to commercial speech. However, it did not necessarily result therefrom that in horizontal relations this freedom could not be limited in compliance with the constitutional principle of proportionality.
31.  Whereas it was true that section 36 paragraph 4 of the Press Act could not be said to be fully consistent with other provisions of that Act, it could validly be relied on by publishers wishing to refuse the publication of an advertisement if they were of the view that the advertisement as proposed was not compatible with the newspaper’s profile.
32.  The Supreme Court concluded that the contested judgment was ultimately in conformity with the law.